Assisted Suicide and Euthanasia: An Exchange

In his September 25, 1997, New York Review article on what the US Supreme Court “really said” in its recent physician-assisted suicide (PAS) cases (Glucksberg v. Washington and Vacco v. Quill), Professor Ronald Dworkin tells us that although no justice dissented from the Court’s refusal to recognize even a limited constitutional right to the help of one’s physician in ending one’s life in order to avoid further suffering and anguish, this unanimity was deceptive. “Five of the six justices who wrote opinions” (i.e., all but Chief Justice Rehnquist, who wrote the principal opinion), continues Dworkin, “made it plain that they did not reject such a right in principle….”

I have to disagree. I think the most that can be said about the deceptive quality of the Court’s unanimity is that two justices (Stevens and Souter) gave reason to believe that they do not or may not reject a right to assisted suicide under certain circumstances.

Because Justice O’Connor provided the fifth vote to make the Chief Justice’s opinion the opinion of the Court and because Justices Ginsburg and Breyer essentially joined in her opinion, O’Connor’s views are especially important. Although I admit her opinion is not free from doubt, I believe the most plausible reading of it is that it recognizes (or at least leaves open the possibility) that terminally ill patients suffering severe pain may have a right to pain relief even if that relief is likely to hasten death or cause unconsciousness. But a right to risky pain relief or, to put it somewhat differently, a right to prevent a state from imposing legal barriers denying access to pain relief, is a different right—and a narrower one—than a right to assisted suicide.

As best as I can tell, Justice Breyer takes essentially the same position O’Connor does. Even assuming that there is something like a “right to die with dignity,” Breyer saw no need to decide whether such a right is “fundamental.” Why not? Because, as he saw it, “the avoidance of severe physical pain (connected with death) would have to comprise an essential part of any successful claim” and “as Justice O’Connor points out, the laws before us do not force a dying patient to undergo that kind of pain.” (Emphasis in the original.) Rather, continued Breyer, the challenged state laws allow physicians to provide patients with pain-relieving drugs “despite the risk that those drugs themselves will kill.” So long as this is the case, concluded Breyer, laws prohibiting PAS should withstand constitutional challenge.

Professor Dworkin does discuss Justice Breyer’s opinion at some length. He points out that Breyer ended his opinion with “the important observation that if states did interfere with the ‘administration of drugs as needed to avoid pain at the end of life,’ then ‘as Justice O’Connor suggests, the Court might have to revisit its conclusion in these cases.”‘

Dworkin does not make clear why Breyer’s observation is important. I think the reason is that not only is Breyer (and O’Connor as well) supporting the “double effect” principle (the principal that explains why a doctor is forbidden to administer drugs for the very purpose of killing a patient, but allowed to increase the dosage of medication necessary to relieve pain even though the unintended but foreseeable effect of the increased dosage may be to hasten death or increase its risk), he is signaling that the principle may be constitutionally required. Justices Breyer and O’Connor and presumably Justice Ginsburg, who expressed general agreement with O’Connor’s view, are saying in effect (and quite possibly this view has the support of a majority of the Court) that if a state were to prohibit the administration of pain relief desperately needed by a patient if and when the increased dosage of medication is highly likely to bring about death, they would want to revisit the law of death and dying and consider whether such a restriction on pain relief is constitutionally permissible. (So far as I know, however, no state bans the use of pain relief when it is likely to hasten death.)

It should be pointed out that the opponents of PAS are the ones who have long defended the “double effect” principle. They continued to do so in the assisted suicide cases. For example, an amicus brief filed on behalf of the states by the American Medical Association (AMA) and some 45 other medical and health care organizations emphasized that a physician’s obligation to relieve pain and suffering and to promote the dignity of dying patients “includes providing palliative treatment even though it may foreseeably hasten death.” And the AMA also told the Supreme Court:

The recognition that physicians should provide patients pain medication sufficient to ease their pain, even where that may serve to hasten death, is vital to ensuring that no patient suffer from physical pain. (Emphasis added.)

Those favoring the legalization (or the constitutionalization) of PAS are the ones who have criticized the “double effect” principle. They have condemned the supposed hypocrisy in permitting the use of analgesics that hasten death while banning euthanasia and they have contended that killing to relieve pain and suffering, i.e., euthanasia, has already been legally authorized in the context of “risky pain relief.”

It is worth recalling that it was the court that concluded that competent, terminally ill patients do have a constitutional right to PAS, the US Court of Appeals for the Ninth Circuit (sitting en banc), that disparaged any so-called distinction between (1) medical procedures that increase the risk of death or hasten its arrival as a byproduct of efforts to control pain and (2) procedures whose very purpose is to kill the patient. Observed the Ninth Circuit:

We see little, if any, difference for constitutional or ethical purposes between providing medication with a double effect and providing medication with a single effect, as long as one of the known effects in each case is to hasten the end of the patient’s life.

A robust version of the “double effect” principle—the view that even when the level of medication is highly likely to cause death the “double effect” principle may be constitutionally required—helps opponents of PAS, not proponents of the practice. For one of the main arguments against the legalization of PAS is that “properly trained health care professionals can effectively meet their patients’ needs for compassionate end-of-life care without acceding to requests for suicide.” (AMA amicus brief.) The “double effect” principle eases the task of health care professionals—and eases the plight of their patients—and thus weakens the case for PAS.

Yale Kamisar
Clarence Darrow Distinguished University
Professor
University of Michigan Law School
Ann Arbor, Michigan

To the Editors:

Ronald Dworkin introduces his discussion of the Dutch experience and my work by suggesting that scientists who are opposed to legalization often have ethical or religious prejudices against euthanasia that impair their scientific independence. He then says that I am the director of an organization that he misidentifies as “The Suicide Foundation” and, without any knowledge, manages to imply that both I and the foundation have some religious/ ethical agenda that motivates opposition to legalization which we are cloaking in the guise of suicide prevention.

The American Foundation for Suicide Prevention, a national nonprofit organization devoted to suicide research, organized before legalization of assisted suicide became an issue of public concern, has no such agenda. Nor do I. If I were persuaded that legalization would improve the care of the seriously or terminally ill, I would support it.

Dworkin is critical of Justice David Souter for citing my work, among others, in the recent US Supreme Court decision rejecting a constitutional right to assisted suicide, to conclude that despite guidelines and regulations the Dutch have not been able to control the practice of physician-assisted suicide and euthanasia.

It is the Dutch government’s own sanctioned research (studies done for the years 1990 and 1995) that has established that 60 percent of cases of assisted suicide and euthanasia are not reported by Dutch doctors, which by itself makes regulation impossible; more than half of Dutch doctors feel free to suggest euthanasia to their patients which compromises the voluntariness of the process; and a quarter of Dutch physicians stated they had “terminated the lives of patients without an explicit request” from the patient to do so. The use of the word “explicit” is somewhat inaccurate since in half of these cases there was no request of any kind, and in the others there were mainly references to patients’ earlier statements of not wanting to suffer.

It is not my “claim” but the official 1990 and 1995 studies that established that the lives of fully competent patients are being ended without their consent. The 1992 article that Dworkin cites as explaining that among the 1000 cases in 1990 who were “terminated without explicit request” were patients who were not competent, does not address the 37 percent of those patients who were competent but whose lives were ended without their consent.

Dworkin does not seem to be aware of the political nature of the sanctioned Dutch research, or to know that criticism from non-Dutch investigators who have studied the Dutch situation is virtually unanimous, or that the Dutch go to remarkable lengths to suppress criticism. For example, Dworkin creates the impression that he has uncovered doctors in the Dutch medical establishment who told him that I did not report accurately what they said in their interviews with me, not telling the reader that a full account of this appears in my book in the course of describing Dutch reactions to criticism.

The doctors he spoke to at first tried to get Issues in Law and Medicine not to publish my original article on the material. They declined the opportunity to write an answering article. The same group tried to get my publisher (W.W. Norton) not to publish my book (Seduced by Death: Doctors, Patients, and the Dutch Cure) saying it was inaccurate. When my detailed notes confirmed my account, the Dutch group responded that I nevertheless came to the wrong conclusions. The publisher replied that in this country one had a right to be “wrong.”

My conclusions did not in any case depend on the interviews with those doctors. I showed them what I wrote in advance of publication because I was interested in both their response to the gross inadequacies of their system revealed by the government studies and the disparity between their admitting that their system was out of control and their public statements. They explained that they were afraid that any such admissions would play into the hands of those who were opposed to euthanasia and were embarrassed to have their own criticisms of the system made public. I permitted them to soften their remarks and I quoted their objections to my conclusions. What I could not do was to change my conclusions.

Dworkin trots out the old saw that since some doctors are already practicing euthanasia, legalization will permit better regulation. The fact that a small but significant percentage of physicians in this country are giving medication to end patients’ lives often without the consent of patients or families has led Diane Meier—whose study of the question has led her to no longer support legalization—to conclude that if physicians are willing to break the law as it now stands they surely will feel even less constrained by any guidelines once euthanasia has legal sanction.

For the Dutch, accepting the option of euthanasia seems to be costing them the opportunity to take advantage of the remarkable developments in palliative care of the past decade. Palliative care has become one of the casualties of Dutch euthanasia policies while hospice care lags behind that of other countries. For other countries, knowledge of these developments still remains to be disseminated and implemented. We should accept that challenge and avoid making the Dutch mistake.

Herbert Hendin, M.D.
Medical Director
American Foundation forSuicide Prevention
New York City

Ronald Dworkin replies:

Professor Kamisar is a distinguished academic lawyer whose many articles opposing any right to assisted suicide have been quoted with approval by several judges, including justices in the recent Supreme Court decision. He disagrees with my statement that five of the justices’ opinions made plain that they did not reject the idea of a limited constitutional right to a doctor’s assistance in dying “in principle.” He concedes that Justices Stevens and Souter did not reject such a right, but argues that Justice O’Connor did (though he generously adds that the matter is not free from doubt) and that we must therefore also understand the two other justices who endorsed her opinion—Justices Ginsberg and Breyer—as having rejected such a right in principle.
Justice O’Connor wrote:

I join the Court’s opinion because I agree that there is no generalized right to “commit suicide.” But respondents urge us to address the narrower question whether a mentally competent person who is experiencing great suffering has a constitutionally cognizable interest in controlling the circumstances of his of her imminent death. I see no need to reach that question in the context of the facial challenges to the New York and Washington laws at issue here.

The phrase “constitutionally cognizable interest” is significant: it means an interest of such constitutional importance that citizens have, in principle, a right that states not deny liberty in a way that jeopardizes that interest, and that states therefore need a specially powerful justification for any law that does deny liberty in that way. Justice Rehnquist, as I said, took great care to deny that individuals have such a constitutionally protected interest, and that states need any special justification flatly to prohibit, in all cases, medical assistance in suicide. That is why observers were puzzled that O’Connor joined his opinion.

It is true, as I said, that in her view a state’s concern to protect people whose decision to die “is not really voluntary” does give it the needed special justification to override any right to assisted suicide that any citizen might have even in principle. But she qualified that judgment by making plain that it depended on a further assumption. “There is no dispute,” she said, “that dying patients in Washington and New York can obtain palliative care, when doing so would hasten their death.” Breyer, in his own separate opinion, emphasized the differences between O’Connor’s argument, which left open the question of the “constitutionally cognizable interest” she described, and Rehnquist’s, which foreclosed that question against that interest. Breyer said he was not deciding whether a “right to die in dignity” was or was not a fundamental right because, he said, “the avoidance of severe pain (connected with death)” would be at the center of any such right, and “the laws before us do not force a dying person to undergo that kind of pain.”

Kamisar interprets O’Connor and Breyer as leaving open only the question whether states can constitutionally bar the administration of pain-relieving medicine that is likely to hasten death. But his reading does not fit what they said. Suppose, as many doctors declare, that severe pain cannot be controlled in some terminal patients by conventional painkillers, like morphine, even if administered in very large and risky doses. Then insisting that states may not forbid such conventional painkillers in those doses would not be enough to provide the “palliative care” or the “avoidance of severe pain” that O’Connor and Breyer mentioned, and laws preventing assisted suicide then would indeed “force a dying patient to undergo that kind of pain.” So these justices would then have to consider the more fundamental constitutional issue I believe they reserved, which is whether some patients have, at least in principle, a right to assistance in suicide.

Perhaps Kamisar interprets the justices, however, as leaving open not just the question whether states can forbid doctors to use conventional painkillers in risky doses, but the further question whether it can forbid them to use more direct and certain ways of ending pain in extreme cases, like total and sustained anesthesia which would shortly lead to death. Doctors using the latter technique would satisfy Kamisar’s “double effect” standard if they did so primarily to relieve pain when no other means for doing so were available. But that standard, often dubious, would then be absurd. What possible justification could there be for allowing doctors to induce terminal unconsciousness and a certain though protracted death, but forbidding them to prescribe pills that would bring an quicker and more humane death? Surely the former technique would leave patients just as vulnerable to the pressures the justices feared as the latter would.

I did not accuse Professor Hendin of a “prejudice.” I said that it is important, when studying empirical research into a sensitive social issue, to consider whether the author has ethical or other convictions that might threaten the detachment of his study, and I noted that Hendin was the executive director of an organization that he describes as “working to prevent suicide,” an office that does, I assume, reflect convictions on the subject at issue. Hendin also objects to my discussion of the protests of five eminent Dutch doctors to his reports of his interviews with them, because, he says, he fully reported those protests in his book. The passages he must have in mind fall far short, however, of any such disclosure.

In his introduction he says that “before [an earlier] publication I sent the material to key people involved in the interviews and revisited them in the Netherlands. Some wished to soften what they had said, and I permitted them to do so.” But the doctors objected to the descriptions as published after the alleged “softening.” In a section titled “Dutch Critics of Euthanasia,” he describes the doctors’ letter I mentioned as “stating that I had come to erroneous conclusions and that they did not want the material to be published,” which implies that they were attempting to stop publication of his conclusions about them rather than to correct his—in their view untruthful—reports of what they had told him, and he reinforced that implication by asking his readers whether the same “paternalism” that he says Dutch doctors show toward their dying patients “is reflected in their notion of being entitled to control the publication of material critical of their euthanasia practices.” (I am told that the doctors asked that their letter be published with Hendin’s article, not that his article not be published.)

In another section of his book, entitled “Dutch Postscript,” he reports fresh conversations he had with the doctors in a later visit to the country, but these passages, too, fail to report the doctors’ real objection. He says that one doctor who “had written to me detailing his strong objections to certain aspects of my account” was “most concerned that my description of [a legal case] reflected on his ability as a psychotherapist.” Another doctor, he said, “objected to the publication in my article of much of what he had told me in our original meeting,” which sounds like an objection to publication, not to the accuracy of what was published. Another doctor, he said, “had retreated from his acknowledgement ten months earlier…,” which suggests a change of mind and gives no hint of the doctor’s actual charges. Hendin now says that his conclusions did not, after all, depend on interviews with those doctors. But he called them “major sources” of his information in his book, and his readers, and those justices who relied upon his book, were surely entitled to a more candid statement of the fact that, in the opinion of those major sources, his account of what they told him was not “truthful.”

The New York Review received several other letters in response to my article and although there was no space to publish them, I should like to respond to important concerns that two of them expressed. One writer, citing personal experience, feared giving authority over assisted suicide to supervisory boards, which, in her view, often protect doctors rather than patients. I gave reasons for thinking, however, that properly structured review boards would give doctors less power to make life or death decisions for patients than they may already have in their power, often unregulated, to decide when pain relief that threatens death should nevertheless be administered. Another letter expressed the opposite worry, that I was suggesting that the doctors’ power to relieve pain should be more heavily regulated that it now is, a change that, in the writer’s opinion, would insure more suffering. I did not mean to imply that, but it would only be natural for states, confronted with the emphasis some of the justices put on the fact that no state now forbids dangerous doses of palliatives, to consider whether some further protection of patients was necessary, and it is possible that a de facto regime of what amounts to assisted suicide legislation might develop around their efforts to do so.